CBN & ANOR v. PPDC LTD/GTE

CITATION: (2018) LPELR-45856(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON THURSDAY, 10TH MAY, 2018Suit No: CA/A/556/2016

Before Their Lordships:

ABDU ABOKI Justice, Court of AppealEMMANUEL AKOMAYE AGIM Justice, Court of AppealMOHAMMED MUSTAPHA Justice, Court of Appeal

Between1. CENTRAL BANK OF NIGERIA2. THE GOVERNOR, CENTRAL BANK OF NIGERIA - Appellant(s)

AndPUBLIC & PRIVATE DEVELOPMENT CENTRELTD/GTE (PPDC) - Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal"It is very important to bear in mind that the nature of evidence required in matters like this, which involve the supervisory jurisdiction of the High Court exercised in the review ofthe acts of governmental bodies, otherwise referred to as judicial review, is essentially affidavit evidence, see ABC LTD V. NWAIGWE (2011) LPELR-208-SC.It is settled that the evaluation of such evidence and indeed any other evidence by a Court involves a reasoned belief of the evidence of one of the contending parties anddisbelief of the other or a reasoned preference of one version to the other. There must be something on record to show why the Court preferred one piece of evidence to the otherin arriving at the conclusion it did, see OYEKOLA V. AJIBADE (2004) 17 NWLR (PT. 902) 356. It is therefore the duty of the trial Court in this case to properly evaluate the affidavitevidence placed before it, for the just determination of the dispute before it, especially as there are no witnesses called by either of the parties.?The counter affidavit of the appellants is quoted verbatim in earlier parts of this judgment; and paragraph 15 thereof, at page 41 of the record of appeal, stated clearly that byexhibit CBN1 the appellants have a pending administrative proceeding being conducted by the National Assembly, which the trial Court did not take into account in arriving at thedecision it did. This failing is more glaring in view of the fact that the said counter affidavit is not controverted in any way, given that the legal position of uncontroverted evidenceis settled, see OGUNYADE V. OSHUNKEYE (2007) 15 NWLR (Pt. 1057) 218.Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the trial Court to act on theunchallenged evidence before it, unfortunately the trial Court could not apply this trite position of the law because it did not take it into account the counter affidavit of theappellants in the first instance, if it did it would have found the unchallenged and uncontradicted evidence of the appellants as accepted in establishing the facts therein, seeODULAJA V. HADDAD (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 SC 79, see also NZERIBE V. DAVE ENG. CO. LTD. (1994) 8 NWLR124; EBEINWE V. THE STATE (2011) 7 NWLR 402 and OKIKE V. L.P.D.C. (2005) 15 NWLR (Pt. 949) 471. The finding of the trial Court at page 104 of the record of appeal, that "...I donot see any third party trade secret information being requested. All the appellant is asking for are the bids tender documents, contract evaluation and award..." is far from whatthe state of pleadings in the case disclosed.Ordinarily this Court does not interfere with the findings of a trial Court, unless it is satisfied that such findings are perverse or that the trial Court did not adequately utilize theopportunity or advantage of documentary evidence before it, and therefore occasioned a miscarriage, unfortunately that clearly is the case in this case, because the trial Court'sfailure to take into account the uncontradicted depositions of the appellants in the counter affidavit did indeed occasioned a miscarriage of justice. See DANIEL GARAN VS. STAFFOLOMU (2013) 10 SCM 88 AT 102 1 TO 103 and also LEKAN SHODIYA VS. THE STATE (2013) 12 SCM 175 AT 187.The trial Court's failure to properly evaluate the content of the appellants' counter affidavit, particularly paragraphs 14, 16 and 17 thereof, to the extent that the said informationrequested by the respondent was such that could not be disclosed, being subject especially of investigation by the National Assembly, as per Exhibit CBN1 amounted to afundamental breach of the appellants' right to be fairly heard, thus occasioning a miscarriage of justice. If the trial Court had averted its mind to those paragraphs of the affidavit,it would surely have arrived at a different conclusion.Learned counsel to the respondent's argument in response that the appellants failed to discharge the burden of proof laid down by Section 24 of the Act is neither here nor therein the circumstances of this case.It is for these reasons that I now resolve this issue too in favour of the appellants, against the respondent."Per MUSTAPHA, J.C.A. (Pp. 22-26, Paras. F-D) - read in context

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2. LEGISLATION - FREEDOM OF INFORMATION ACT, 2011: Right of the public to information under the Freedom of Information Act, 2011 and its exceptions"The Freedom of Information Act, 2011 was enacted clearly with the intention of making public records and information freely available to any member of the interested public.Section 1 of the Act confers the right to commence proceedings to compel compliance by any unwilling custodian; however, right to information is not absolute, as certain formsof information are exempted from disclosure.The first set of information sought by the respondent from the appellants are:1. A certified copy of the signed contract document between the Federal Government of Nigeria or Central Bank of Nigeria and Systemspec Nigeria limited in respect of the use ofcompany's Remita (funds) e-payment/e-collection solution platform as part of the medium for the implementation of the Federal Government TSA policy.2. What is the company's fee/remuneration or commission for the services rendered/to be rendered to the government under the contract?3. What is the duration of the contract; and4. How much has accrued to the company from the inception of its engagement for the implementation of the TSA policy till date (i.e. up to 12th November, 2015); andThe second set of information sought is:1. Certified true copies of procurement plans and information, including needs assessment and evaluation, and identification of services required.2. Certified true copy of advertisement of invitation for bids published in at least two national dailies apart from the federal tender's journal and a relevant internationallyrecognized publications. Also evidence of the advertisement on your website and notice board.3. Copies of the standard bidding documents that were issued to all bidders in the course of the procurement.4. A Certified True Copy of the list of all bids tendered in respect of this procurement from when advertised till the closure of bid advertisement.5. Certified True Copy of bid submission registers and duplicate copies of receipts issued to bidders on submission of bids.6. Certified True Copy of minutes of public bid opening meeting.7. Certified True Copy of minutes of bid evaluation meeting and records of bids evaluation report containing the recommendation of the bid evaluation committee.8. Certified True Copy of minutes of the tender's board awarding the contract to the successful bidder.9. Certificate of No Objection issued in respect of the procurement (if any)10. Letter of notification of award of contract at page 13 of appellants brief.Now the question that arises is whether the information sought falls within the category of information exempted by the Act Section 12, 14 and 15.It is important at this point to have recourse to the relevant provisions of the Act on exemption, and they provide as follows:Section 12:1) Public institution may deny an application for any information which contains-(a) Records compiled by any public institution for administrative enforcement proceedings and by any law enforcement or correctional Agency for law enforcement purposes or forinternal matters of a public institution, but only to the extent that disclosure would-i. Interfere with pending or actual and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional Agency.ii. Interfere with pending administrative enforcement proceedings conducted by any public institution.iii. Deprive a person of fair trial or an impartial Hearingiv. Unavoidably disclose the identity of a confidential source.v. Constitute an invasion of personal privacy under Section 15 of this Act except where the interest of public would be better served by having such records being made available,this exemption to disclose shall not apply; andvi. Obstruct an ongoing criminal investigation. Section 14(1)Subject to Subsection 2, a public institution must deny an application for information that contains personal information and information exempted under this subsection includes;(c) Files and personal information maintained with respect to any Applicant, registrant or Licensure or discipline.Section 15(1a, b, c)A public institution shall deny an application for information that contains;a. Trade secrets and commercial or financial information obtained from a person or business where such trade secrets or information are proprietary, privileged or confidential orwhere disclosure of such trade secret or information may cause harm to the interest of the third party provided that nothing contained in this subsection shall be construed aspreventing a person or business from consenting to disclosure.b. Information the disclosure of which could reasonably be expected to interfere with the contractual or other obligation of a third party andc. Proposal and bids for any contract, grant or agreement, including information which if it were disclosed would frustrate procurement or give an advantage to any person.At pages 2, 3, 11, 12, 19 and 20 of the record of appeal the respondent set out the specific information sought, and it is these information that was ordered by the trial Court to bedisclosed, when the trial Court came to the conclusion that the information sought by the respondent did not fall within the various exemptions provided under the Act, see pages95 and 104 to 105 of the record of appeal.On the first set of information sought and directed to be released by the trial Court, it is important to refer to the appellants, counter affidavit, particularly paragraphs 14 to 17 atpages 35 to 40 of the record of appeal for the determination of whether the appellants' depositions satisfactorily bring the information sought within the ambits of the exemptionsprovided by the Act.Paragraphs 14 - 17 states: -"14. That I know of a fact that information being requested from the 1st and 2nd Respondents is currently the subject of administrative enforcement proceedings by both publicinstitutions and Law Enforcement Agency particularly the Presidency, the National Assembly, the Ministry of Finance, the Economic and Financial Crimes Commission and CentralBank.15. That further to the above, I have checked our records and was able to find one of the invitations from the public institutions and the law Enforcement Agency inviting theRespondents with respect to the ongoing administrative enforcement proceedings relating to the information being sought by the Applicants. The House of Representatives letterof 19th November 2015 inviting the Respondent to appear before it is hereby Exhibited and marked as Exhibit CBN 1.16. That I know for a fact that apart from the invitation from the House of Representatives in Exhibit CBN 1 above, that the Senate, Presidency, Economic and Financial CrimesCommission and the Central Bank of Nigeria are conducting administrative enforcement proceedings with respect to the contract which is current on-going.17. That I know for a fact that the information being sought if released will interfere with the pending administrative enforcement proceedings, review and investigation beingconducted by the public institution and the law enforcement agencies."It is clear from the depositions in the counter affidavit of the appellants that the information sought to be made available is the subject of an ongoing administrative enforcementproceedings by the National Assembly, the Federal Ministry of Finance and the EFCC, and the appellants have clearly stated that the information if released will interfere with allthe pending administrative enforcement proceedings, thus bringing the information squarely within the exemptions provided in Section 12 (1) (a) of the Act, and that much isclear from Exhibit CBN1, attached to the counter affidavit of the appellants, particularly referred to at paragraph 15, see page 41 of the record of appeal.For the avoidance of doubt, Exhibit CBN1 is an invitation by the House of Representatives to the appellants, informing them of an ongoing investigation with respect to issuesrelated to the subject matter, i.e. Treasury Single Account contract award to Systemspec Nigeria Limited.It is argued for the respondents that Section 24 of the Act places the burden on the appellants as a public institution to prove that they are indeed authorized to deny theinformation sought, that in the considered opinion of this Court is exactly what the appellants did in their counter affidavit quoted verbatim above, particularly at paragraphs 14,16 and 17 at pages 38 to 39 of the record of appeal; and it is very important not to lose sight of the fact that the depositions in the counter affidavit are not controverted; and thatbeing so, the law is settled that where facts provable by affidavit evidence are duly deposed to in an affidavit by a party, his adversary has a duty to controvert those facts in anaffidavit of his own, be it counter or further affidavit, if he disputes them, failing which such facts may be regarded as duly established; see LONG-JOHN & ORS V. BLAKK (1998) 6NWLR part 555 page 524; It is noteworthy that the foregoing affidavit evidence has not been denied, challenged, or controverted by the respondent in this case, and the settledposition of the law is that affidavit evidence that is not denied is deemed admitted, and being unchallenged evidence, the Court is not only to accept same, but must act on it. Seealso UZODINMA V. IZUNASO (2011) 5 (PT. 1) MJSC 27, OKOEBOR V. POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444; ATT. GEN, ONDO STATE V. ATT. GEN. EKITI STATE (2007) 17NWLR (PT. 706); EGBUNA V. EGBUNA (1989) 2 NWLR (PT. 106) 773. The argument of learned counsel for the respondent that the appellants failed to prove or establish theirentitlement to the exemption is without basis, in view of the clear and uncontroverted proof of pendency of administrative review proceedings and investigation by publicinstitutions with respect to the information sought, as deposed in the counter affidavit, and demonstrated by Exhibit CBN1.With regard to the second request, it is clear, even from casual inspection that the information is in respect of the company's fees or services to be rendered under the contract,and the company, i.e. Systemspec Nigeria Limited is clearly not a party to the suit. To buttress that fact the appellants deposed to that in paragraphs 20, 21, 22, 23 and 24 oftheir counter affidavit, see page 39 of the record of appeal. That being so, Section 15 (1) (a) of the Act clearly exempts the information sought, not least because the company inissue is not a party to the suit, as earlier pointed out.Learned counsel to the respondent's argument that the exemption does not apply to the information sought by reason of the fact that that Section 12 (1) (a) of the Act appliesonly to records 'compiled by any public institution' clearly cannot hold, because a Court of law lacks jurisdiction to hear any matter or cause in favour of, or against persons whoare not parties before it; see SHERIFF & ANOR V PDP & ORS (2017) LPELR-41805-CA. Furthermore, the Court does not have powers also to make orders either in favour of oragainst persons who are not parties to an action before it, see BIYU V. IBRAHIM (2006) 8 NWLR (PT. 981) 1 and NNAEMEKA V. CHUKWUOGOR (2007) 5 NWLR (PT. 1026) 60.It is one thing to request for information from an institution, as provided by the Act, it is entirely another thing when it comes to compelling that institution to release information,where it refuses to release such information as requested, because if the information is indeed of such a nature that it affects a third party interest, it is expedient to also includethe third party in the suit so instituted, at least as a nominal party, otherwise no Court will lawfully make an order against a third party, whose interest will be affected, when infact he is not a party to the suit at all.Several reasons may necessitate the joinder of a party to a suit, on application or even suo motu by the Court, in this case the third party's joinder is desirable not only because itmay be aggrieved or likely to be aggrieved by the result of the litigation to the extent that it will be directly, legally or financially affected by the result of the litigation but alsomost importantly to avoid loss of jurisdiction by the fact of non-joinder, See UKU vs. OKUMAGBA (1974) 3 S.C. 35; GREEN VS GREEN (1987) 3 NWLR (PT. 61) 4580; IGE VS FARINDE(1994) 7 - 8 S.C.N.J (PT. 2) 284.It is not in doubt that the information sought relates to the process of the award of contract to a third party, i.e. Systemspec Nigeria Limited, who is not a party to the suit, by theFederal government of Nigeria, and so the order of the trial Court is not enforceable, as it is contrary to the letter and spirit of Sections 12, 14 and 15 of the Freedom ofInformation Act, 2011.?The Freedom of Information Act, 2011 is undeniably a vital component in a democratic society; its aim is to make information relating to governance freely available to thegoverned, without let or hindrance. It is that desire that also informed the wisdom of the legislature in exempting certain kinds of information, such as international affairs anddefence, law enforcement and investigation, personal information, third party information, research materials, professional and other privileges conferred by law. This protectionfrom disclosure it should be understood is in the same public interest that makes it necessary for certain kind of information to be made available to the public on request; withoutthese exemptions there can only be chaos.The trial Court was therefore clearly in error to have held that the information sought did not fall within the exemptions, as copiously deposed in the uncontradicted counteraffidavit of the appellants."Per MUSTAPHA, J.C.A. (Pp. 9-21, Paras. C-B) - read in context

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MOHAMMED MUSTAPHA, J.C.A. (Delivering the

Leading Judgment): This appeal is against the Ruling of

the Federal High Court, sitting in Abuja; Coram Hon.

Justice B.M. Nyako, delivered on 1st day of July, 2016 in

Suit No: FHC/ABJ/1045/2015.

The Respondent as the Plaintiff before the trial Court vide

its Originating Motion on Notice filed on the 18th day of

December, 2015 sought for a declaration of the trial Court

that the failure of the Appellants to release various

information it sought and requested from them pursuant to

the Freedom of Information Act 2011 was wrongful in the

circumstance. Consequent upon that, the Respondent

further prayed for an order of the trial Court compelling

the Appellants to within 7 days of the judgment of the

Court to furnish the Respondents with the information

sought.

Pleadings were filed and exchanged by parties and in a

considered judgment the trial found that the information

and documents sought by the Respondent did not fall

within the exceptions under the provisions of the Freedom

of Information Act, 2011 and proceeded to make an Order

mandating the Appellants herein

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to release the said information and documents requested

by the Respondent.

Dissatisfied with the said judgment, the appellants filed a

Notice of Appeal to this Court on the 8th day of July, 2016

on the following grounds shorn of their respective

particulars: -

GROUND ONE:

The Learned Trial Judge erred in law when she held that

the information/documents sought by the Respondent are

public documents and as such can be released by virtue of

the Freedom of Information Act 2011.

GROUND TWO:

The Learned Trial Judge erred in law when it held that the

information sought by the Respondent did not fall under

third party documents and information exempted by

Section 15(1)(a), (b), (c) of the Freedom of Information Act

2011.

GROUND THREE:

The Learned Trial Judge erred in law when it ordered the

Appellant to release to the Respondent the information

relating to the contract with Systems Spec Nigeria Ltd.

GROUND FOUR:

The ruling of the Learned Trial Court was against the

weight of evidence adduced.

From the above grounds, Aare Olumuyiwa Akinboro SAN,

of counsel for the Appellants submitted two issues for the

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determination of this appeal in the Appellants' Brief of

Argument filed on the 21st April, 2017 but deemed

properly filed on the 13th November, 2017; thus:

1. Whether the decision of the Court below was right

in law, justifiable and sustainable in view of the

provisions of Sections 12(1A), 14(1c) & 15(1A, B, C)

of the Freedom of Information Act, Cap F43 LFN

20113.

2. Whether the Learned Trial Court's findings and

Judgment was not against the weight of evidence

placed before the Court and therefore perverse.

In response, Godwin N. Chigbu Esq., of counsel for the

Respondent adopted the issues formulated by the

Appellants in the Respondent's Brief filed on the 27th day

of December, 2017 but deemed properly filed on the 13th

day of March 2018.

Issue One:

Whether the decision of the trial Court is right in law,

in view of the provisions of Sections 12 (1a), 14 (1c)

and 15 (1a, b, & c) of the Freedom of Information Act,

2011, grounds 1, 2 & 3.

It is submitted for the appellants on this issue that the right

to information under Section 1 (1) of the Act is not

absolute, with respect to the type of information that can

be

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released to an applicant, and the information sought by the

respondent and consequently ordered to be released by the

trial Court are exempted under the Act.

That information related to international affairs and

defense, law enforcement and investigation, personal

information, third party information, professional or other

privileges conferred by law and course or research

materials are all prohibited and exempted by law from

disclosure.

That a proper appraisal of the processes filed by the

appellants before the trial Court would have led to the

conclusion that the said information fell within the several

exemptions provided under the Act, in Sections 12, 14 and

15.

Learned senior counsel submitted that the first set of

information sought was subject of ongoing administrative

enforcement proceedings by both public institutions and

law enforcement agency, and that much was deposed to in

the appellants' counter affidavit at paragraphs 14 to

17, and that if released the information will interfere with

the pending proceedings, and therefore exempted under

Section 12 (1) (a) of the Act.

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That the depositions in the counter affidavit of

the appellants were not controverted and therefore deemed

admitted; learned senior counsel referred the Court to

CHIEF M.A. INEGBEDION V. DR. SELO-OJEMEN &

ANOR (2013) 8 NWLR part 1356 page 211, ISRAEL

ARUM V. OKECHUKWU NWOBODO (2013) 10 NWLR

part 1362 page 374 and ONWUKA V. OWOLEWA

(2001) 7 NWLR part 713 page 695 and contended that

the fact of the pendency of an administrative proceedings

by public institutions with the information sought was

established.

On the second request of the respondent, it is submitted for

the appellants that it relates to the proprietary, commercial

and financial confidential information of a third party, i.e.

Systems Spec Nigeria Ltd, the owner of the copy right over

Remita E-payment solution, which if released will adversely

affect the proprietary rights, information and trade secrets

of a third party; learned counsel referred this Court to S. 15

(1) (a) of the Act and paragraphs 20, 21, 22 and 23 of the

appellants' counter affidavit, as well asAWONIYI V. REGT

TRUSTEES, AMORC (2000) 10 part 676 page 522 and

MARK OGBECHE UKPO V. GREGORY NGAJI (2010).

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Learned senior counsel further submitted that the third and

fourth requests made is subject of an administrative

enforcement proceedings by the National Assembly,

Federal Ministry of Finance and the EFCC; and if released

will interfere with pending administrative enforcement

proceedings and investigation as exempted under Section

12(1) (a) of the Act; and that much was deposed to at

paragraphs 14 to 17 of the appellants' counter affidavit.

That the second set of information requested relates to the

process of award of the contract between the Federal

Government and Systemspec Nigeria Ltd; that also is a

subject of administrative proceedings by the National

Assembly, Federal Ministry of Finance and the EFCC, and if

released will interfere with pending administrative

enforcement proceedings, especially as it is exempted from

disclosure under Section 15 (1) (b) and (b) of the Act.

It is submitted for the respondent in response on this issue

that by the provisions of Section 24 of the Act the onus of

proof rests on the appellants as public institutions to prove

that they are authorized to deny the information sought on

the ground that they are exempted under the relevant

provisions of the Act, and that the appellants

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failed to discharge that burden before the trial Court, as

such the trial Court was right in ordering them to furnish

the respondent with the requested information; learned

counsel referred this Court to Section 24 of the Act.

That what is exempted under Section 12 (1) (a) of the Act

applies only to records specifically compiled for any of the

purposes covered by the Act, and the respondent is not

asking for records compiled, as exempted under Section 12

of the Act.

That also the information requested by the respondent is

related only to information generated in the course of

procurement proceedings conducted by the appellants and

information arising from the contract entered into by the

appellants with Systemspec Nigeria limited.

Learned counsel further submitted that the information

requested cannot be denied merely for forming part of

records compiled because for information to be exempted

under Section 15 of the Act, the conditions provided must

co-exist concurrently, and the existence of such information

must be deposed in the affidavit of the party seeking

exemption.

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That also the counter affidavit of the appellants does

not disclose any fact capable of satisfying the necessary

conditions set out in Section 15 of the Act, i.e. non-

involvement of trade secrets and commercial or financial

information, let alone third party interest, as such the

exemption does not apply in the circumstances of this case.

Learned counsel also submitted that even though item four

of the first set of information could be said to relate to

financial information the exemption does not apply because

the appellants did not prove the existence of the conditions

necessary for exemption, especially as it is not information

obtained from a third party, but information appellants

know as of right.

On item two of the first set of information, learned counsel

submitted that it has nothing to do with bid or tender

documents, and does not contain any information exempted

under Section 15 of the Act.

That the appellants failed to show how the exemptions in

Sections 12, 14 and 15 of the Act applied to the information

sought by the respondents under the second set of

information, and it is not the duty of the Court to fish for

the exemptions, and having failed to show how the

exemptions applied to the

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set of information requested the appellants cannot expect

to succeed.

Learned counsel further submitted that the exemption

under Section 15 of the Act is only for the purpose of

preventing the frustration of procurement or giving

advantage to any person interested in the procurement,

and so the exemption can only apply were procurement

proceedings have not been concluded.

RESOLUTION:

The Freedom of Information Act, 2011 was enacted clearly

with the intention of making public records and information

freely available to any member of the interested public.

Section 1 of the Act confers the right to commence

proceedings to compel compliance by any unwilling

custodian; however, right to information is not absolute, as

certain forms of information are exempted from disclosure.

The first set of information sought by the respondent from

the appellants are:

1. A certified copy of the signed contract document

between the Federal Government of Nigeria or Central

Bank of Nigeria and Systemspec Nigeria limited in respect

of the use of company's Remita (funds) e-payment/e-

collection solution platform as part of the medium for the

implementation of the Federal Government TSA policy.

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2. What is the company's fee/remuneration or commission

for the services rendered/to be rendered to the government

under the contract?

3. What is the duration of the contract; and

4. How much has accrued to the company from the

inception of its engagement for the implementation of the

TSA policy till date (i.e. up to 12th November, 2015); and

The second set of information sought is:

1. Certified true copies of procurement plans and

information, including needs assessment and evaluation,

and identification of services required.

2. Certified true copy of advertisement of invitation for bids

published in at least two national dailies apart from the

federal tender's journal and a relevant internationally

recognized publications. Also evidence of the advertisement

on your website and notice board.

3. Copies of the standard bidding documents that were

issued to all bidders in the course of the procurement.

4. A Certified True Copy of the list of all bids tendered in

respect of this procurement from when advertised till the

closure of bid advertisement.

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5. Certified True Copy of bid submission registers and

duplicate copies of receipts issued to bidders on submission

of bids.

6. Certified True Copy of minutes of public bid opening

meeting.

7. Certified True Copy of minutes of bid evaluation meeting

and records of bids evaluation report containing the

recommendation of the bid evaluation committee.

8. Certified True Copy of minutes of the tender’s board

awarding the contract to the successful bidder.

9. Certificate of No Objection issued in respect of the

procurement (if any)

10. Letter of notification of award of contract at page 13 of

appellants brief.

Now the question that arises is whether the information

sought falls within the category of information exempted by

the Act Section 12, 14 and 15.

It is important at this point to have recourse to the relevant

provisions of the Act on exemption, and they provide as

follows:

Section 12:

1) Public institution may deny an application for any

information which contains-

(a) Records compiled by any public institution for

administrative enforcement proceedings and by any law

enforcement or correctional Agency for law enforcement

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purposes or for internal matters of a public institution, but

only to the extent that disclosure would-

i. Interfere with pending or actual and reasonably

contemplated law enforcement proceedings conducted by

any law enforcement or correctional Agency.

ii. Interfere with pending administrative enforcement

proceedings conducted by any public institution.

iii. Deprive a person of fair trial or an impartial Hearing

iv. Unavoidably disclose the identity of a confidential

source.

v. Constitute an invasion of personal privacy under Section

15 of this Act except where the interest of public would be

better served by having such records being made available,

this exemption to disclose shall not apply; and

vi. Obstruct an ongoing criminal investigation. Section

14(1)

Subject to Subsection 2, a public institution must deny an

application for information that contains personal

information and information exempted under this

subsection includes;

(c) Files and personal information maintained with respect

to any Applicant, registrant or Licensure or discipline.

Section 15(1a, b, c)

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A public institution shall deny an application for

information that contains;

a. Trade secrets and commercial or financial information

obtained from a person or business where such trade

secrets or information are proprietary, privileged or

confidential or where disclosure of such trade secret or

information may cause harm to the interest of the third

party provided that nothing contained in this subsection

shall be construed as preventing a person or business from

consenting to disclosure.

b. Information the disclosure of which could reasonably be

expected to interfere with the contractual or other

obligation of a third party and

c. Proposal and bids for any contract, grant or agreement,

including information which if it were disclosed would

frustrate procurement or give an advantage to any person.

At pages 2, 3, 11, 12, 19 and 20 of the record of appeal the

respondent set out the specific information sought, and it is

these information that was ordered by the trial Court to be

disclosed, when the trial Court came to the conclusion that

the information sought by the respondent did not fall within

the various exemptions provided under the Act, see pages

95 and 104 to 105 of the record of appeal.

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On the first set of information sought and directed to be

released by the trial Court, it is important to refer to the

appellants, counter affidavit, particularly paragraphs 14 to

17 at pages 35 to 40 of the record of appeal for the

determination of whether the appellants' depositions

satisfactorily bring the information sought within the

ambits of the exemptions provided by the Act.

Paragraphs 14 - 17 states: -

"14. That I know of a fact that information being

requested from the 1st and 2nd Respondents is

currently the subject of administrative enforcement

proceedings by both public institutions and Law

Enforcement Agency particularly the Presidency, the

National Assembly, the Ministry of Finance, the

Economic and Financial Crimes Commission and

Central Bank.

15. That further to the above, I have checked our

records and was able to find one of the invitations

from the public institutions and the law Enforcement

Agency inviting the Respondents with respect to the

ongoing administrative enforcement proceedings

relating to the information being sought by the

Applicants. The House of Representatives letter of

19th

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November 2015 inviting the Respondent to appear

before it is hereby Exhibited and marked as Exhibit

CBN 1.

16. That I know for a fact that apart from the

invitation from the House of Representatives in

Exhibit CBN 1 above, that the Senate, Presidency,

Economic and Financial Crimes Commission and the

Centra l Bank o f Niger ia are conduct ing

administrative enforcement proceedings with respect

to the contract which is current on-going.

17. That I know for a fact that the information being

sought if released will interfere with the pending

administrative enforcement proceedings, review and

investigation being conducted by the public

institution and the law enforcement agencies."

It is clear from the depositions in the counter affidavit of

the appellants that the information sought to be made

available is the subject of an ongoing administrative

enforcement proceedings by the National Assembly, the

Federal Ministry of Finance and the EFCC, and the

appellants have clearly stated that the information if

released will interfere with all the pending administrative

enforcement proceedings, thus bringing the information

squarely within the exemptions

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provided in Section 12 (1) (a) of the Act, and that much is

clear from Exhibit CBN1, attached to the counter affidavit

of the appellants, particularly referred to at paragraph 15,

see page 41 of the record of appeal.

For the avoidance of doubt, Exhibit CBN1 is an invitation

by the House of Representatives to the appellants,

informing them of an ongoing investigation with respect to

issues related to the subject matter, i.e. Treasury Single

Account contract award to Systemspec Nigeria Limited.

It is argued for the respondents that Section 24 of the Act

places the burden on the appellants as a public institution

to prove that they are indeed authorized to deny the

information sought, that in the considered opinion of this

Court is exactly what the appellants did in their counter

affidavit quoted verbatim above, particularly at paragraphs

14, 16 and 17 at pages 38 to 39 of the record of appeal; and

it is very important not to lose sight of the fact that the

depositions in the counter affidavit are not controverted;

and that being so, the law is settled that where facts

provable by affidavit evidence are duly deposed to in an

affidavit by a party, his

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adversary has a duty to controvert those facts in an

affidavit of his own, be it counter or further affidavit, if he

disputes them, failing which such facts may be regarded as

duly established; see LONG-JOHN & ORS V. BLAKK

(1998) 6 NWLR part 555 page 524; It is noteworthy that

the foregoing affidavit evidence has not been denied,

challenged, or controverted by the respondent in this case,

and the settled position of the law is that affidavit evidence

that is not denied is deemed admitted, and being

unchallenged evidence, the Court is not only to accept

same, but must act on it. See also UZODINMA V.

IZUNASO (2011) 5 (PT. 1) MJSC 27, OKOEBOR V.

POLICE COUNCIL (2003) 12 NWLR (PT. 834) 444;

ATT. GEN, ONDO STATE V. ATT. GEN. EKITI STATE

(2007) 17 NWLR (PT. 706); EGBUNA V. EGBUNA

(1989) 2 NWLR (PT. 106) 773.

The argument of learned counsel for the respondent that

the appellants failed to prove or establish their entitlement

to the exemption is without basis, in view of the clear and

uncontroverted proof of pendency of administrative review

proceedings and investigation by public institutions with

respect to the information sought, as deposed in the

counter affidavit, and demonstrated by Exhibit CBN1.

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With regard to the second request, it is clear, even from

casual inspection that the information is in respect of the

company's fees or services to be rendered under the

contract, and the company, i.e. Systemspec Nigeria Limited

is clearly not a party to the suit. To buttress that fact the

appellants deposed to that in paragraphs 20, 21, 22, 23 and

24 of their counter affidavit, see page 39 of the record of

appeal. That being so, Section 15 (1) (a) of the Act clearly

exempts the information sought, not least because the

company in issue is not a party to the suit, as earlier

pointed out.

Learned counsel to the respondent's argument that the

exemption does not apply to the information sought by

reason of the fact that that Section 12 (1) (a) of the Act

applies only to records 'compiled by any public institution'

clearly cannot hold, because a Court of law lacks

jurisdiction to hear any matter or cause in favour of, or

against persons who are not parties before it; see

SHERIFF & ANOR V PDP & ORS (2017) LPELR-41805-

CA. Furthermore, the Court does not have powers also to

make orders either in favour

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of or against persons who are not parties to an action

before it, see BIYU V. IBRAHIM(2006) 8 NWLR (PT.

981) 1 and NNAEMEKA V. CHUKWUOGOR (2007) 5

NWLR (PT. 1026) 60.

It is one thing to request for information from an

institution, as provided by the Act, it is entirely another

thing when it comes to compelling that institution to

release information, where it refuses to release such

information as requested, because if the information is

indeed of such a nature that it affects a third party interest,

it is expedient to also include the third party in the suit so

instituted, at least as a nominal party, otherwise no Court

will lawfully make an order against a third party, whose

interest will be affected, when in fact he is not a party to

the suit at all.

Several reasons may necessitate the joinder of a party to a

suit, on application or even suo motu by the Court, in this

case the third party's joinder is desirable not only because

it may be aggrieved or likely to be aggrieved by the result

of the litigation to the extent that it will be directly, legally

or financially affected by the result of the litigation but also

most importantly to avoid loss

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of jurisdiction by the fact of non-joinder, See UKU vs.

OKUMAGBA (1974) 3 S.C. 35; GREEN VS GREEN

(1987) 3 NWLR (PT. 61) 4580; IGE VS FARINDE

(1994) 7 - 8 S.C.N.J (PT. 2) 284.

It is not in doubt that the information sought relates to the

process of the award of contract to a third party, i.e.

Systemspec Nigeria Limited, who is not a party to the suit,

by the Federal government of Nigeria, and so the order of

the trial Court is not enforceable, as it is contrary to the

letter and spirit of Sections 12, 14 and 15 of the Freedom of

Information Act, 2011.

The Freedom of Information Act, 2011 is undeniably a vital

component in a democratic society; its aim is to make

information relating to governance freely available to the

governed, without let or hindrance. It is that desire that

also informed the wisdom of the legislature in exempting

certain kinds of information, such as international affairs

and defence, law enforcement and investigation, personal

information, third party information, research materials,

professional and other privileges conferred by law. This

protection from disclosure it should be understood is in the

same public interest that

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makes it necessary for certain kind of information to be

made available to the public on request; without these

exemptions there can only be chaos.

The trial Court was therefore clearly in error to have held

that the information sought did not fall within the

exemptions, as copiously deposed in the uncontradicted

counter affidavit of the appellants.

It is for these reasons that I resolve this issue in favour of

the appellants, against the respondent.

Issue Two:

Whether the trial Court's finding was not against the

weight of evidence placed before it and therefore

perverse; ground 4.

It is submitted for the appellants on this issue that it is the

duty of a trial Court to properly evaluate affidavit evidence

placed before it for the just determination of the case,

especially where no witnesses are called as in this case;

and that Exhibit CBN1 is conclusive prove of existence of

pending administrative proceedings conducted by a public

institution, which the trial Court is bound to consider, and

it is the failure to do so that led to the wrong conclusion

arrived at; learned counsel referred this Court

to UNIVERSITY OF ILORIN V. OYALANA (2001)

15 NWLR part 737 page 684 and RE: AMOLEGBE

(2014) 8 NWLR part 1408 page 76.

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That the trial Court failed even to mention the document

attached to the appellants' affidavit in support of its

uncontroverted assertion that the information was subject

of investigation by an organ of the government, thus failing

to evaluate the evidence presented, learned counsel

referred this Court toWOLUCHEM V. GUDI (1981) 5 SC

291.

That this Court is bound to interfere because the finding of

the trial Court is perverse, not supported by evidence and

occasioned a miscarriage of justice, learned senior counsel

referred this Court toGUARDIAN NEWSPAPERS LTD V

AJEH (2011) 10 NWLR part 1256 page 574 and

CHUKWU V. AKPELU (2014) 13 NWLR part 1424

page 359.

It is submitted in response that the appellants failed to

discharge the burden of proof placed on them by Section 24

of the Act to entitle them to the exemption sought, and also

that the respondent's case is more probable than that of the

appellants.

RESOLUTION:

It is very important to bear in mind that the nature of

evidence required in matters like this, which involve the

supervisory jurisdiction of the

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High Court exercised in the review of the acts of

governmental bodies, otherwise referred to as judicial

review, is essentially affidavit evidence, see ABC LTD V.

NWAIGWE (2011) LPELR-208-SC.

It is settled that the evaluation of such evidence and indeed

any other evidence by a Court involves a reasoned belief of

the evidence of one of the contending parties and disbelief

of the other or a reasoned preference of one version to the

other. There must be something on record to show why the

Court preferred one piece of evidence to the other in

arriving at the conclusion it did, see OYEKOLA V.

AJIBADE (2004) 17 NWLR (PT. 902) 356. It is therefore

the duty of the trial Court in this case to properly evaluate

the affidavit evidence placed before it, for the just

determination of the dispute before it, especially as there

are no witnesses called by either of the parties.

The counter affidavit of the appellants is quoted verbatim

in earlier parts of this judgment; and paragraph 15 thereof,

at page 41 of the record of appeal, stated clearly that by

exhibit CBN1 the appellants have a pending administrative

proceeding being conducted by the National Assembly,

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which the trial Court did not take into account in arriving

at the decision it did. This failing is more glaring in view of

the fact that the said counter affidavit is not controverted

in any way, given that the legal position of uncontroverted

evidence is settled, see OGUNYADE V. OSHUNKEYE

(2007) 15 NWLR (Pt. 1057) 218.

Where evidence given by a party to any proceedings was

not challenged by the opposite party who had the

opportunity to do so, it is always open to the trial Court to

act on the unchallenged evidence before it, unfortunately

the trial Court could not apply this trite position of the law

because it did not take it into account the counter affidavit

of the appellants in the first instance, if it did it would have

found the unchallenged and uncontradicted evidence of the

appellants as accepted in establishing the facts therein, see

ODULAJA V. HADDAD (1973) 11 SC 357; NIGERIAN

MARITIME SERVICES LTD. V. ALHAJI BELLO

AFOLABI (1978) 2 SC 79, see also NZERIBE V. DAVE

ENG. CO. LTD. (1994) 8 NWLR 124; EBEINWE V. THE

STATE (2011) 7 NWLR 402 and OKIKE V. L.P.D.C.

(2005) 15 NWLR (Pt. 949) 471.

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The finding of the trial Court at page 104 of the record of

appeal, that "...I do not see any third party trade secret

information being requested. All the appellant is

asking for are the bids tender documents, contract

evaluation and award..." is far from what the state of

pleadings in the case disclosed.

Ordinarily this Court does not interfere with the findings of

a trial Court, unless it is satisfied that such findings are

perverse or that the trial Court did not adequately utilize

the opportunity or advantage of documentary evidence

b e f o r e i t , a n d t h e r e f o r e o c c a s i o n e d a

miscarriage, unfortunately that clearly is the case in this

case, because the trial Court’s failure to take into account

the uncontradicted depositions of the appellants in the

counter affidavit did indeed occasioned a miscarriage of

justice. See DANIEL GARAN VS. STAFF OLOMU (2013)

10 SCM 88 AT 102 1 TO 103 and also LEKAN

SHODIYA VS. THE STATE (2013) 12 SCM 175 AT 187.

The trial Court’s failure to properly evaluate the content of

the appellants’ counter affidavit, particularly paragraphs

14, 16 and 17 thereof, to the extent that the said

information requested by the respondent was such that

could not be

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disclosed, being subject especially of investigation by the

National Assembly, as per Exhibit CBN1 amounted to a

fundamental breach of the appellants' right to be fairly

heard, thus occasioning a miscarriage of justice. If the trial

Court had averted its mind to those paragraphs of the

affidavit, it would surely have arrived at a different

conclusion.

Learned counsel to the respondent's argument in response

that the appellants failed to discharge the burden of proof

laid down by Section 24 of the Act is neither here nor there

in the circumstances of this case.

It is for these reasons that I now resolve this issue too in

favour of the appellants, against the respondent.

Having resolved the two issues for determination in favour

of the appellants, against the respondent, I find the appeal

meritorious. It succeeds per force.

The ruling of the Federal High Court Number 4, Abuja, of

the 1st of July, 2016 in suit No: FHC/ABJ/1045/2015 is

hereby set aside.

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ABDU ABOKI, J.C.A.: I have had the opportunity of

reading before now the lead judgment just delivered by my

learned brother MOHAMMED MUSTAPHA, JCA.

I agree with the reasoning and conclusion contained

therein, that the appeal is meritorious. It is accordingly

allowed by me.

I also abide by the consequential order(s) as contained in

the lead judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of

the judgment just delivered by my Learned brother,

MUSTAPHA MOHAMMED JCA. I agree with the reasoning,

conclusions and orders therein.

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Appearances:

O. Akinboro SAN; with him, Tunde Arowolo, Esq.and Christopher Iloka, Esq. For Appellant(s)

G.M. Chigbuq with him, M.E. Ogenyi Esq. ForRespondent(s)

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